25 S.C. 506 | S.C. | 1886
The opinion of the court was delivered by
The plaintiff being the owner of a considerable body of land on John’s Island had cut up a portion of it into small lots for the convenience of purchasers ; and after selling a good many of these lots, the defendant applied to him to buy a lot at a certain designated place on that portion of the land not then divided into lots. Plaintiff agreed verbally to sell to defendant thirty acres, at the place indicated, at five dollars per acre, and ten dollars for papers and plat, making in all the sum of one hundred and sixty dollars. On January 23, 1874, in pursuance of said agreement, defendant paid to plaintiff ninety dollars and took from him a receipt in, the following words: “Charleston, January 23rd, 1874. Received of James Brisbane $90 on account of the purchase of thirty acres of land, the balance of §570 is due January 1st, 1875, when I will make good titles. J. M. Humbert.”
In a few days after this receipt was given, the lot, designated as No. 37 on the plat used on the trial of this case, was surveyed and laid off for defendant, and he was placed in possession by the plaintiff, and has ever since continued in possession, except of about ten acres of which he was dispossessed by the plaintiff in 1883, as will be hereinafter more fully stated, and has made improvements of no inconsiderable value, considered in reference to the value of the lot. On the day of the survey defendant inquired of the plaintiff how many acres were in lot No. 37, and was informed that this could not be precisely ascertained until the surveyor had made his calculations, though it was supposed the lot contained something less than thirty acres, whereupon defendant said this was not enough and that he wanted more land, and plaintiff told him he could have more off the adjoining lot, No. 34, which had previously been laid off.
At this point there is direct conflict in the testimony as to what further occurred between the parties, the plaintiff claiming that the defendant agreed to take the whole of lot No. 34, containing about thirty-nine acres, thus making the whole amount something
But, upon consultation with his counsel, plaintiff was advised that his rights were those of a mortgagee and not those of an absolute owner, and, therefore, this action was commenced to foreclose the equitable mortgage for the balance of the purchase money, in which judgment was demanded for the sale of both lots, in default of payment by the defendant of the balance due on the purchase money of the sixty odd acres embraced in the two lots. Defendant answered claiming that the contract was for the purchase of lot No. 37 only, and that he had paid, and overpaid the purchase money for that lot, containing as it did only 23 9-10 acres instead of thirty acres, and he demanded specific performance of that contract. He also set up a counter-claim for damages in evicting him from ten acres of that lot. The issues were referred to the master, who made his report, in which he adopted the view of the contract contended for by defendant, and that this contract, though not in writing, was relieved from the operation of the statute of frauds by part performance and was, therefore,
To this report both parties excepted on the several grounds set out in the “Case,” which need not be repeated here in detail. Upon this report and exceptions the case came before Judge Pressley, who held that the master’s findings of fact were not supported by the testimony. On the contrary, he said: “My conclusion from that testimony is that in January, 1874, the parties made a written contract for thirty acres of land at $160, on which $90 was then paid and the remainder, $70, was to be paid on January 1, 1875. When the surveyor laid off the said land he gave defendant only twenty-three acres, with which he was not satisfied. Not getting the thirty acres he had bought, he agreed by parol to take an additional lot, making in all sixty-three acres, but I find no satisfactory proof that he ever took possession in his own right of more than the thirty acres. His brother took possession of a portion of the additional lot, and plaintiff was to be responsible that said brother would take'and pay for it, but that promise was by parol. After various payments on account by defendant and failure to pay in full, plaintiff, claiming a forfeiture, took possession of all of said land except 30 94-100 acres, and sold it to John Waight, who now holds the same. The thirty acres called for by the contract has never been properly laid off to defendant. I hold that a written contract for sale of land cannot be changed by parol, and that there is no sufficient proof of possession under that change to validate it. I further hold that if said change were valid, it was rescinded by plaintiff when he sold part of said land to John Waight. My judgment is that both parties must stand by the written contract. On that, after calculation of interest from January 1, 1875, to January 1, 1886, the balance due the plaintiff will then be twenty-four dollars and fifty cents.” He therefore rendered judgment that the defendant pay to the plaintiff, by a day appointed, that sum and the costs
From this judgment defendant appeals upon numerous grounds which need not be set out here, as Ave propose to consider only such material questions as are presented by the record.
We cannot concur in the view that there was any such written contract between these parties as would satisfy the requirements of the statute of frauds. The only writing that we hear of which was signed by either of the parties is the receipt of January 23, 1874, of which a copy is given above, and in that there is no such description or designation of the land proposed to be sold as would enable a court to render a decree for its conveyance. There is nothing but a bare statement of the number of acres, but where it is located or what are its boundaries is left wholly uncertain. It seems to us that the authorities clearly show that such a writing is wholly insufficient. Church of Advent v. Farrow, 7 Rich. Eq., 378; Hyde v. Cooper, 13 Id., 250; Mims v. Chandler, 21 S. C., 480.
But as it is well settled that even a parol contract for the sale of land may be enforced when there has been such part performance as, under the cases, will take it out of the operation of the statute, it is necessary for us to inquire whether there has been any such part performance in this case. Mere payment of a part or the whole of the purchase money, without more, is not sufficient ; but when such payment is accompanied with possession, acquired under the contract, and the purchaser has made improvements, it is sufficient. Mims v. Chandler, supra, and the authorities there cited. Assuming for the purpose of this inquiry, though the testimony leaves it in no little doubt, that after the original agreement for the purchase of thirty acres, the defendant also made a parol agreement to buy the other lot — No. 34 — at the same price, let us inquire whether there was any such part performance of such additional contract as would take it out of the statute of frauds. We do not find any satisfactory proof that
Next, as to the contract set up by defendant and of which he claims specific performance. There can be no doubt from the terms of the receipt that the original agreement was that defendant was to have thirty acres, but when this agreement came to be carried into effect by the surveying and platting the lot which he was to get, he only received twenty-three and nine-tenths acres. Now, whether the failure to give defendant the whole amount he contracted for would have warranted him in refusing to comply with the terms of the agreement, is a question which need not now be considered. The fact is, that he did accept the lot No. 37, although it contained a less number of acres than he contracted for, was put into possession of it by the plaintiff, in pursuance of the original contract, has ever since remained in possession, claiming it as his own, making improvements, and paying the purchase money. It seems to us that the legitimate inference is that the parties, by their acts, have modified the original agreement so that the defendant was to get lot No. 37, containing only 23 9-10 acres instead of thirty acres. That was the area of the land which the plaintiff, in pursuance of the original agreement had surveyed and laid off for defendant and put him in possession, and that was what the defendant accepted.
It is true that, at the time, the defendant expressed a desire to have more land, and the plaintiff expressed a willingness to let him have more, but this desire and this intention never ripened into any act. No more land was laid off for the defendant, and there is no evidence that either party ever expressed any wish or intention, much less ever took any step, to abrogate the con
We cannot adopt the statement embraced in the master’s report, by which he has undertaken to show that the exact balance due on the purchase money was paid, when defendant made his last payment, for that statement is based upon certain assumptions for which there is no warrant whatever in the testimony. For example, he assumes that the area of lot No. 37 is 23 92-100 acres, instead of 23 9-10 acres as shown by the undisputed testimony, and again he makes a second charge of ten dollars for survey and papers, without a particle of testimony to sustain such a charge. On the contrary, according to our view the account between these parties stands as follows: •
To purchase money of lot No. 37, 23 9-10 acres,
The only remaining inquiry is as to the counter-claim for dam-r ages which is set up in the answer. ¡ This claim arises ex delicto and not ex contractu, and therefore cannot be set up in an action like this, “arising on contract” (Code, § 171; Copeland v. Young, 21 S. C., 276), unless the cause of action constituting the basis of the counter-claim arises “out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim,” or unless it is “connected with the subject of the action.” This counter-claim certainly does not arise out of the contract or transaction set forth in the complaint, for that was a contract for the sale of the land made in 1874, and certainly the alleged trespass in 1883' cannot with any propriety be said to arise out of that contract. Was it connected with the subject of the action ? Exactly what is meant by the words, “subject of the action,” as used in the code does not seem to be very clearly defined in any judicial decision which has come under our notice. Mr. Pomeroy, who is regarded as a standard authority in the construction of the code, in his valuable work on Remedies, at page 800, section 775, after stating some of the different constructions which have been placed upon these words, uses this language: “It would, as it seems to me, be correct to say in all cases, legal or equitable, that the ‘subject of the action’ is the plaintiff’s main primary right which has been broken, and by means of whose breach a remedial right arises.”
If this construction of the words in question be adopted, then it is clear that the counter-claim set up in this case is not connected with the “subject of the action.” The plaintiff’s main primary right was to have payment of the purchase money of the
The judgment of this court is, that the judgment of the Circuit Court be reversed and that the case be remanded to that court for such further proceedings as may be necessary to carry out the views herein announced.